Answering Jeffrey

In the recent article by Martin Jalleh dated 14 Sept 2011 entitled Chief Jester’s Circus and Charade Comes to a Close (Part 2) which appeared in your blog, I find this comment from Jeffrey:

The Ex judges that talked independent, don’t forget that they do so only after they left office, with nothing to lose!

Normally I do not answer comments from commentators. But in this case I think Mr Jeffrey should know that he is mistaken because apparently he does not know about me when I was a serving judge. For sure he has not read my book How to Judge the Judges. I would suggest that he reads Ayer Molek v Insas [1995] 2 MLJ 735. This is what I said in the Court of Appeal, page 742 (in my book at page 164):

The ex parte order in the instant case which compels compliance of it within two working days and the subsequent conduct of the judge in adjourning the application of the defendants to set aside the ex parte order to a date after the period allowed for compliance of the order (without granting a stay of the ex parte order) have effectively deprived the defendants from exercising their right to apply to set aside an ex parte injunction. This misuse of the court’s procedure, in our view, is manifestly unfair to a party to litigation before it. This court, therefore, has a duty to exercise its inherent power to prevent misuse of its procedure.

With me in the Court of Appeal were Siti Norma Yaacob JCA (later Federal Court judge and Chief Judge of the High Court (Malaya) and KC Vohrah J (later judge of the Court of Appeal), both are judges of the highest integrity. I concluded the Court of Appeal’s judgment thus, page 744:

These observations are made so that people will not say, “Something is rotten in the state of Denmark” – Shakespeare, Hamlet, 1.

Our decision in the Court of Appeal went to the Federal Court within a week and we were severely criticized by Chief Justice Eusoff Chin who ordered our judgment to be expunged. But in expunging the objectionable passages from the judgment of the Court of Appeal, Eusoff Chin had to repeat the expunged passages in his judgment; see Insas v Ayer Molek [1995] 2 MLJ 833. What is the use of expunging our judgment when anyone can read the expunged part from the judgment of the Federal Court? When we have imbeciles as judges this is what you get!

This entry was posted on Saturday, 17 September 2011, 1:25 am and is filed under Judiciary, NH Chan. You can follow any responses to this entry through RSS 2.0.

I would like to think, all these are planned by, you know who! It is easier to ‘cow’ a ‘real cow’ than an ‘unreal cow’. Hence we find the how the civil servants are ‘caught’ in the PKFZ case. You certainly can’t compare the caliber of today’s top civil service [ maybe for the exception of less than a handful] to those who have retired some time ago! Today we have spineless ones who would say yes to the Minsters on everything! The fault lies only on one party! The political leadership! so waht shall we do? Isn’t the answer obvious?

My remarks were not personal. There were not intended as a snide reference to ex judge NH Chan or any imputation that he talked independently more than what his career record as sitting judge shows. His quotation of Shakespeare’s Hamlet in Ayer Molek “Something is rotten in the state of Denmark” was a defining moment of a sitting judge commenting on the dire state of Judiciary – which was intended to refer to the House of Denmark where the Kuala Lumpur High Court then was situated. Even in retirement it is good he continues to berate and castigate his sitting brethrens for their shortcomings. To the public, criticisms have more force when they come from an ex judge.

My remarks were made in context of criticisms of outgoing CJ Zaki in an article on him being “chief Jester” than context what NH Chan wrote or said. It was intended more to say that we the public might be expecting too much if we hoped sitting judges could by themselves alone so readily rectify the institutional rot since LP Salleh Abas got sacked in 1988 for incurring then PM’s displeasure. First of all we have an Executive which does not feel it improper to interfere. Then sitting judges are by convention are expected to show sobriety, moderation, and reserve in conduct and not get embroiled in public/political controversies. More important is way judges are appointed as against normal human frailties. We have the problem in Judges being appointed in the name of King but on preference of the Executive (PM) in accordance with article 122B of the Federal Constitution.

Naturally a leader in executive power he would appoint those who won’t rock the boat. Human nature is such that those appointed will also want to ascend judicial ladder which again depends on Executive’s grace. Whilst as a minimum we do expect judges to be learned – and certainly not corrupt- to cherry pick precedents to side the party that they favour against the other, in private cases of dispute, in cases of great public import (public interest litigation) and political and constitutional implications it would, as a general case, be difficult to get a soul who dare stand up to decide in embarrassment of the govt of the day in power.

It may be asked, what happened to Salleh Abbas & the other 4 judges or Syed Ahmad Idid or Gopal Sri Ram’s prospects for Federal Court after his remarks on Daim in Metramac case? Would other judges with normal human ambitions to rise in judicial hierarchy not be deterred after seeing all these cases? In 1988 Judicial crisis then Chief Registrar Haidar acted on then Acting LP (Hamid)’s instructions to keep the Supreme Court seal under lock and key so that it could not sit to hear Salleh Abas. Later on when he retired and set on Lingam Video RCI, was there any complaint about how that RCI decided as compared to say controversial finding of the TBH RCI presided by sitting Judge? So in that sense pressures against sitting Judges’ speaking and deciding independently (fortified by the above precedents of Abas, Idid etc) are always exerted by an Executive that deems it its right to do so without respect for principle of separation of powers. That makes it easier, in this general sense, to speak after one has left office.

The upshot is that if we want address judicial independence versus rot, we have to look at the system of appointment of judges at first instance and build in check and balance against the Execuitive/PM’s unfettered discretion to choose those whose temperament is adjudged subservient to power and not boat rockers. This requires a political solution but even now Pakatan Rakyat has not come out with any cogent proposition on how to address this or the composition of the Judicial Commission and the part this will play against an inherent propensity of an Executive to interfere in other Branch of Govt’ business! To expect judges to change from within the system on their own is uphill when this issue of appointment is not addressed. At best they could do is to say something after they leave the system. That’s the general purport of what was intended by my remarks, with no intention whatsoever to particularly cast any aspersion to Justice NH Chan’s unblemished career record.

In a nutshell, to preserve independence of judiciary, it is not enough by constitutional provisions to protect judges from being arbitrarily sacked by a Govt (expecting them to be compliant) and protect their retirement pensions and perks. It is also equally important to address appointment whether first as a judge and subsequent on whether he gets promoted. Judges too are humans. Whilst they are not afraid of being terminated their jobs, they are concerned whether their career path ascends or stagnates. This is where the whole issue of appointment, criteria of judges, whether we should leave it to the graces of the Executive entirely or some other check and balance against Executive’s unfettered discretion and bad intentions comes to focus. If we don’t address this issue relating to system then we are sanguine to expect individual judicial personalities still sitting as judges could, under present political & cultural milieu, to find a voice on their own accord to assert independence, and to just criticize and dismiss them (as what happened in Zaki’s case) if they are found wanting. It would be easier for them after they have retired.